| People v Ramirez |
| 2020 NY Slip Op 01087 [180 AD3d 811] |
| February 13, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Malachi Ramirez, Appellant. |
Janet E. Sabel, New York, NY (David Crow and Patterson Belknap Webb &Tyler LLP [Daniel S. Ruzumna and Nicholas R. Hartmann], of counsel), forappellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Sharon Y. Brodt, and Aurora Alvarez-Calderon of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Barry A. Schwartz, J.), rendered June 18, 2014, convicting him of gang assault in thefirst degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in theinterest of justice, and a new trial is ordered.
As we found on the appeal of the defendant's codefendant, a new trial is requiredhere due to the prosecutor's improper comments during summation (see People v Ramirez, 150AD3d 898, 899 [2017]). While the defendant's claims of prosecutorial misconductduring summation are partially unpreserved for appellate review, as we did on thecodefendant's appeal, we review the partially unpreserved claims in the exercise of ourinterest of justice jurisdiction (see CPL 470.15 [6] [a]; People v Ramirez,150 AD3d at 899).
"[O]n summation, a prosecutor may not 'improperly encourage[ ] inferences of guiltbased on facts not in evidence' " (People v Gonsalves, 170 AD3d 886, 888 [2019], quoting People v Fisher, 18 NY3d964, 966 [2012]). As we determined in People v Ramirez (150 AD3d at899-900), the prosecutor here improperly suggested that the jury should disregard thegrand jury testimony of one of the People's main witnesses, and invited the jury tospeculate that a missing witness would have given supporting testimony if he had beencalled to testify. Contrary to the People's contention, the comments that were foundprejudicial in the codefendant's case were equally prejudicial here, as the credibility ofthe People's witness was crucial to the case against this defendant, and the evidenceagainst him was not overwhelming.
"The rule of Molineux is familiar: Evidence of uncharged crimes isinadmissible where its only purpose is to show bad character or propensity towardscrime" (People v Arafet, 13NY3d 460, 464-465 [2009]). However, "evidence of other crimes may be admittedto show motive, intent, the absence of mistake or accident, a common scheme or plan orthe identity of the guilty party" (People v Allweiss, 48 NY2d 40, 47 [1979]; see People v Morris, 21 NY3d588, 594 [2013]; People v Molineux, 168 NY 264 [1901]). "In addition,evidence of uncharged crimes may be admitted as necessary background material whenrelevant to a contested issue in the case, or to complete the narrative of the events if suchevidence is inextricably interwoven with the crime charged" (People v Foster,295 AD2d 110, 112 [2002] [citations omitted]; see People v Morris, 21 NY3d at594; People v Johnson, 137AD3d 811, 812 [2016]). "Still, even if technically relevant for one of these or someother legitimate purpose, Molineux evidence will not be admitted if it 'is actuallyof slight value when compared to the possible prejudice to the accused' "(People v Arafet, 13 NY3d at 465, quoting People v Allweiss, 48 NY2dat 47).
The fact that the defendant allegedly resisted arrest six months after the incident inquestion after violating an order of protection against him held by one of thecomplainants was not relevant in this matter. The defendant was not resisting arrest forthe crimes charged at trial, and resisting arrest in this instance was too far removed fromthe underlying incident to be deemed admissible as evidence of consciousness of guilt(cf. People v Harris, 304 AD2d 839, 839 [2003], affd 23 NY3d 89[2014]). The probative value of the evidence that the defendant resisted arrest was faroutweighed by the potential prejudice of creating an inference that the defendant mayhave violent tendencies, as indicated by him flailing and thrashing his arms against apolice officer.
Accordingly, the judgment must be reversed, and a new trial ordered.
The defendant's remaining contentions are without merit. Scheinkman, P.J., Duffy,Barros and Wooten, JJ., concur.